AWARD OF COMPENSATION UNDER THE MOTOR VEHICLES ACT, 1988

Transcription

1 AWARD OF COMPENSATION UNDER THE MOTOR VEHICLES ACT, 1988 An Overview GUIDING PRINCIPLES FOR MOTOR ACCIDENTS CLAIMS TRIBUNALS Page 1 of 36 By Justice Deepak Gupta Under Common Law there was no right to claim damages in case of death. Right to claim damages was however always recognized in case of personal injury. After the advent of the rail and road transport, the Fatal Accidents Act of 1846 was introduced in England and in case of death due to negligence the tortfeaser was made liable to pay compensation to certain relatives. Over a period of time, the law further developed and the Fatal Accidents Act was introduced in India in The Motor Vehicles Act, 1939 was enacted to deal specifically with accidents arising out of the use of Motor Vehicles. The Motor Vehicles Act, 1988 was enacted to consolidate and amend the law relating to accidents arising from motor vehicles. When a law is enacted to consolidate and amend the law, the Legislature not only takes into consideration the law as it was existing but also the law which was prevailing prior thereto. 1 This Act further aims at regularizing the use of Motor Vehicles and to compensate victims who are injured or died in accident and family members and dependants of the deceased victims. This Act has been further amended in the year It is well settled that in case of motor accident claims, an endeavor is made to put the claimants in the pre-accidental position. The damages to be awarded are to be adequate in terms of money so that the injured / claimants are put in the same position had they not suffered the loss on account of wrong of the respondent, though, no amount of compensation can restore the loss of limb or experience of pain or loss of life. Fault liability The person who brings the petition for compensation, must show that the respondent was negligent. For a person to be legally responsible for his action, it is essential to have evidence that he is at fault. For the purpose of such an action, although, there is no statutory definition of negligence, ordinarily, it would mean omission of duty caused either by omission to do something which a reasonable man guided upon those considerations, who ordinarily by reason of conduct of human affairs would do or be obligated to, or by doing something which a reasonable or prudent man would not do. 7 In Rathnashalvan v. State of Karnataka, 2 the Supreme Court defined rashness as follows :- "Rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences." Judge, High Court of Himachal Pradesh. 1 Machindranath Kernath Kasar Vs. D.S. Mylarappa, (2008) 13 SCC AIR 2007 SC 1064.

2 follows : In State of Karnataka v. Muralidhar, 3 the Supreme Court defined word negligence as "Negligence means omission to do some-thing with reasonable and prudent means granted by the consideration which ordinarily regulate human affairs or doing something which prudent and a reasonable means guided by similar considerations would not do." Who Can Be The Claimants In Injury Cases, it is the injured, who is the claimant. In Death Cases, the legal heirs of the deceased are claimants. Those who are not dependants but are the legal heirs are also entitled to compensation. 4 But the Legal Representative of a person who is himself guilty of rash and negligent driving, cannot claim compensation. 5 It has however been held in Sarla Verma vs. Delhi Transport Corporation 6, as under: Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant.. In view of the judgment of Supreme Court in Manjuri Bera vs. Oriental Insurance Company 7, even the brothers or father would be entitled to the compensation under section 140 of Motor Vehicles Act, because the liability under section 140 of the Motor Vehicles Act does not cease because there is absence of dependency. But an appeal filed by the injured- claimants for personal injuries cannot be continued by his legal heirs. 8 Assessment of Compensation Life cannot be valued. Similarly no human being can put any monetary value of his limb or of any other human being. How does one assess the value of the loss of all faculties when some victim of an accident loses his mental faculties and lives in vegetative state. The courts can only grant compensation for the pecuniary and monetary loss caused and some other expenses, but no court can even attempt to grant compensation for loss of life or limb. Mainly pecuniary loss has to be assessed. Nominal damages for funeral expenses, loss of consortium and 3 AIR 2009 SC See: The National Insurance Co. Ltd, vs. Budh Ram FAO 383 of 2005, Decided on 31/8/11 and Supla Devi vs. Ramesh kumar, (2006) 2 Shim. LC 153 (on LRs).. 5 See : Oriental Insurance Co. Ltd. Vs. Raji Devi, (2008) 5 SCC 736 and FAO No. 49 of 2009, decided on 4/07/2011, titled as New India Insurance Co. Ltd. vs. Smt. Sarita Devi. 6 (2009) 6 S.C.C (2007) 10 S.C.C See : Smt. Ram Ashari vs. H.R.T.C, 2005 (1) Sim LC 359. Page 2 of 36

3 conventional damages. Long expectation of life is connected with earning capacity. 9 In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. 10 Just Compensation The Tribunal has power to award the compensation above the amount claimed, so as to award compensation which was just. 11 In this regard the following observations of the Supreme Court in State of Haryana vs. Jasbir Kaur 12, are worth noting:- "7. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which is to be in the real sense "damages" which in turn appears to it to be "just and reasonable". It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be "just" and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be 'just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of 'just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression 'just" denotes equitability, fairness and reasonableness, and non-arbitrary. if it is not so it cannot be just. (See Helen C. Rebello v. Maharashtra SRTC (1999(1) SCC 90) It has been held by Supreme Court in Yadava Kumar Vs. Divisional Manager National Insurance Co. Ltd. 13 as under: 14. While assessing compensation in accident cases, the High Court or the Tribunal must take a reasonably compassionate view of things. It cannot be disputed that the appellant being a painter has to earn his livelihood by virtue of physical work. The nature of injuries which he admittedly suffered, and about which the evidence of PW-2 is quite adequate, amply demonstrates that carrying those injuries he is bound to suffer loss of earning capacity as a painter and a consequential loss of income is the natural outcome. 9 See: B.T Krishnappa vs. Divisional Manager,Uunited Insurance Company Ltd., (2010) 12 S C C 246 and Leela Gupta vs. State of Uttar Pradesh, (2010) 12 SCC R. D. Hattangadi vs. Pest Control (India) Pvt. Ltd., (1995) 1 SCC See : Municipal Corporation of Greater Bombay vs. Kisan Gangaram, (2009) 16 SCC (2003) 7 S.C.C (2010) 10 SCC 341. See also: New India Assurance Co.Ltd. vs. Yogesh Devi, (2012) 3 SCC 613. Page 3 of 36

4 15. It goes without saying that in matters of determination of compensation both the Tribunal and the Court are statutorily charged with a responsibility of fixing a `just compensation'. It is obviously true that determination of a just compensation cannot be equated to a bonanza. At the same time the concept of `just compensation' obviously suggests application of fair and equitable principles and a reasonable approach on the part of the Tribunals and Courts. This reasonableness on the part of the Tribunal and Court must be on a large peripheral field. Both the Courts and Tribunals in the matter of this exercise should be guided by principles of good conscience so that the ultimate result become just and equitable (See Mrs. Helen C. Rebello and others Vs. Maharashtra State Road Transport Corpn. and another - AIR 1998 SC 3191). 16. This Court also held that in the determination of the quantum of compensation, the Court must be liberal and not niggardly in as much as in a free country law must value life and limb on a generous scale (See Hardeo Kaur and others Vs. Rajasthan State Transport Corporation and another - (1992) 2 SCC 567). 17. The High Court and the Tribunal must realize that there is a distinction between compensation and damage. The expression compensation may include a claim for damage but compensation is more comprehensive. Normally damages are given for an injury which is suffered, whereas compensation stands on a slightly higher footing. It is given for the atonement of injury caused and the intention behind grant of compensation is to put back the injured party as far as possible in the same position, as if the injury has not taken place, by way of grant of pecuniary relief. Thus, in the matter of computation of compensation, the approach will be slightly more broad based than what is done in the matter of assessment of damages. At the same time it is true that there cannot be any rigid or mathematical precision in the matter of determination of compensation. Principles to Determine Compensation in Death Cases The work of the Tribunal has been made some what easy by the recent judgment of the Apex Court in Sarla Verma vs. Delhi Transport Corporation 14, wherein the following factors have to be considered by the Tribunal while awarding compensation: Step 1 (ASCERTAINING THE MULTIPLICAND ) The income of the deceased per annum should be determined. Out of the said income a deduction is to be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance which is to be considered to be the contribution to the dependant family, constitutes the multiplicand. 14 (2009) 6 SCC 121. Page 4 of 36

5 Step 2 (ASCERTAINING THE MULTIPLIER ) Having regard to the age of deceased and period of active career, the appropriate multiplier should be selected. Step 3 (ACTUAL CALCULATION ) i). The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the loss of dependency to the family. ii). Thereafter, conventional amount in the range of about Rs.10,000 may be added as loss of estate. Where the deceased is survived by a widow, another conventional amount in the range of Rs.10,000 to Rs.20,000 should be added under the head of loss of consortium. iii). No amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased. iv). The funeral expenses, cost of transportation of the body and cost of medical treatment of the deceased before death (if incurred) should also be added. v). The personal and living expenses of deceased should be deducted from his income. Methods To Determine Compensation UNIT METHOD: 2 units per adult, one unit per child - divide income by total units, subtract value of units of deceased. Balance is datum figure. This method is preferred when income is low. 2 nd METHOD: Deduct 1/3rd of income on account of personal expenses of deceased. In case of high income deduct income tax. In case of business, agriculture etc., where the claimant(s) inherits the business or orchard, the value of the services of the deceased has to be assessed to calculate the datum figure. The unit method was applied in Himachal Pradesh in H.P Road Transport Corporation vs. Pandit Jai Ram 15, which is the leading authority on the point. However, the Supreme Court in Santosh Devi vs. National Insurance Company Ltd. 16 held that the deductions cannot be made blindly. It held as under: 19. It is also not possible to approve the view taken by the Tribunal which has been reiterated by the High Court albeit without assigning reasons that the deceased would have spent 1/3rd of his total earning, i.e., Rs. 500/-, towards personal expenses. It seems that the Presiding Officer of the Tribunal and the learned Single Judge of the High Court were totally oblivious of the hard realities of the life. It will be impossible for a person ACJ (2012) 6 SCC 421. Page 5 of 36

6 whose monthly income is Rs.1,500/- to spend 1/3rd on himself leaving 2/3rd for the family consisting of five persons. Ordinarily, such a person would, at best, spend 1/10th of his income on himself or use that amount as personal expenses and leave the rest for his family. Selection of Multiplier Multiplier is to be used as per law laid down in Sarla Verma vs. Delhi Transport Corporation 20. The choice of multiplier has to be based on the age of the deceased or of the claimant whichever is higher and the deduction for personal expenses of the deceased also depends on number of dependent family members. But the Table of Multiplier is also not to be blindly followed, as held in Naina Thakur vs. Punjab Women s Welfare Colleges Board 17, as under: It is thus apparent that the Apex Court has now approved the multiplier in column No.4 of the aforesaid table. I would, however, like to add a caveat on the basis of the law laid down in Susamma Thomas & Trilok Chandra and approved in Sarla Verma. The choice of multiplier has to be based on the age of the deceased or the claimants whichever is higher. Therefore, if the parents are the claimants. It is age of the parents which will have to be taken into consideration while fixing the multiplier. This table is also not to be blindly followed and the Tribunal may well be within its jurisdiction to make departure from this table in particular cases. For example if the deceased was aged between 41 to 45 years as per this judgment multiplier of 14 is to be used. However, the deceased if he had married late, may have left behind a very young widow and two small children. The Tribunal in such a case may be justified in increasing the multiplier to 15. On the other hand there may be a case where the deceased who was aged between 41 to 45 years has not left behind a widow and the claimants are sons who are majors and are not dependents. The multiplier may be suitably reduced in such cases. This has to depend on the facts of each case. Reference may also be made in this regard to P.S Somanathan vs. District Insurance Officer 18. Rule of Sarla Verma's case 20 can be deviated in exceptional circumstances where income of deceased was bound to increase. 19 Multiplier To Be Used As Mentioned In Column (4) Of The Table Prepared In Sarla Verma s Case Latest HLJ 2009 (HP) (2011) 3 SCC See: K.R Madhusudhan vs. Administrative Officer, (2011) 4 SCC 689. Page 6 of 36

7 Increase in future income The Supreme Court also considered the fact that when the person was employed, then his income would increase in future. Therefore it was held in Sarla Verma s case, 20 that while calculating the multiplicand, provision be made for future increase of income. The Apex Court held thus: 11. In Susamma Thomas, this Court increased the income by nearly 100%, in Sarla Dixit, the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. Where the annual income is in the taxable range, the words `actual salary' should be read as `actual salary less tax'. The addition should be only 30% if the age of the deceased was 40 to 50 years. In K.R Madhusudhan vs. Administrative Officer, 20 observing that that there can be departure from the rule of thumb, it was held as under: 10. The present case stands on different factual basis where there is clear and incontrovertible evidence on record that the deceased was entitled and in fact bound to get a rise in income in the future, a fact which was corroborated by evidence on record. Thus, we are of the view that the present case comes within the `exceptional circumstances' and not within the purview of rule of thumb laid down by the Sarla Verma (supra) judgment. Hence, even though the deceased was above 50 years of age, he shall be entitled to increase in income due to future prospects. Recently, disagreeing with the observations in Sarla Verma case, 20 the Supreme Court in Santosh Devi vs. National Insurance Company Ltd., 21 held as under: 20 (2011) 4 SCC 689. Page 7 of 36

8 14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma's case that where the deceased was selfemployed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be naïve to say that the wages or total emoluments/income of a person who is self-employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. 15. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self- employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. 18. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is selfemployed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he / she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation. Compensation on Death of a child The problem arises when the compensation is to be awarded in case of death of a child, because, the child may not be earning anything and may be studying. Therefore, in such cases the parents cannot be said to be dependent on the child. But even then the parents would be suffering the loss of the child and for that they have to be compensated suitably. The Supreme Court recently in R.K. Malik versus Kiran Paul 22, was dealing with a case of death of a child. After considering its earlier judgments on the point including Lata Wadhawa vs. State of Bihar 23 and M.S. Aggarwal vs. Deep Chand Sood 24, wherein compensation in case of death of school children was granted, it was held that in addition to awarding compensation for pecuniary losses, the compensation was also to be granted with regard to future prospects of the child. The Supreme Court had held in R.K. Malik's case 28 as under:- 27. In the case of Lata Wadhwa (supra), wherein several persons including children lost their lives in a fire accident, the Court awarded substantial amount as compensation. No doubt, the Court noticed that the children who lost their lives were studying in an expensive school, had bright prospects and belonged to upper middle class, yet it cannot be said that higher compensation awarded was for deprivation of life and the pain and suffering undergone on loss of life due to 21 (2012) 6 SCC (2009) 14 SCC (2001) 8 SCC (2001) 8 SCC 151. Page 8 of 36

9 financial status. The term "conventional compensation" used in the said case has been used for non pecuniary compensation payable on account of pain and suffering as a result of death. The Court in the said case referred to Rs.50, 000/- as conventional figure. The reason was loss of expectancy of life and pain and suffering on that account which was common and uniform to all regardless of the status. Unless there is a specific case departing from the conventional formula, non- pecuniary compensation should not be fixed on basis of economic wealth and background. 28. In Lata Wadhawa case (supra), wherein the accident took place on , the multiplier method was referred to and adopted with approval. In cases of children between 5 to 10 years of age, compensation of Rs.1.50 lakhs was awarded towards pecuniary compensation and in addition a sum of Rs.50,000/- was awarded towards `conventional compensation". In the case of children between 10 to 18 years compensation of Rs.4.10 lakhs was awarded including "conventional compensation". While doing so the Supreme Court held that contribution of each child towards family should be taken as Rs.24,000/- per annum instead of Rs.12, 000/- per annum as recommended by Justice Y. V. Chandrachud Committee. This was in view of the fact that the company in question had an un-written rule that every employee can get one of his children employed in the said company. 29. In the case of M. S. Grewal v. Deep Chand Sood, (2001) 8 SCC 151, wherein 14 students of a public school got drowned in a river due to negligence of the teachers. On the question of quantum of compensation, this Court accepted that the multiplier method was normally to be adopted as a method for assigning value of future annual dependency. It was emphasized that the Court must ensure that a just compensation was awarded. 30. In Grewal case (supra), compensation of Rs.5 lakhs was awarded to the claimants and the same was held to be justified. Learned Counsel for the respondent no.3, however, pointed out that in the said case the Supreme Court had noticed that the students belonged to an affluent school as was apparent from the fee structure and therefore the compensation of Rs.5 lakhs as awarded by the High Court was not found to be excessive. It is no doubt true that the Supreme Court in the said case noticed that the students belonged to an upper middle class background but the basis and the principle on which the compensation was awarded in that case would equally apply to the present case. 31. A forceful submission has been made by the learned counsels appearing for the claimants-appellants that both the Tribunal as well as the High Court failed to consider the claims of the appellants with regard to the future prospects of the children. It has been submitted that the evidence with regard to the same has been ignored by the Courts below. On perusal of the evidence on record, we find merit in such submission that the Courts below have overlooked that aspect of the matter while granting compensation. It is well settled legal principle that in addition to awarding compensation for pecuniary losses, compensation must also be granted with regard to the future prospects of the children. It is incumbent upon the Courts to consider the said aspect while awarding compensation. Reliance in this regard may be placed on the decisions rendered by this Court in Page 9 of 36

10 General Manager, Kerala S. R. T. C. v. Susamma Thomas, (1994) 2 SCC 176; Sarla Dixit v. Balwant Yadav, (1996) 3 SCC 179; and Lata Wadhwa case (supra). 32. In view of discussion made hereinbefore, it is quite clear the claim with regard to future prospect should have been be addressed by the courts below. While considering such claims, child's performance in school, the reputation of the school etc. might be taken into consideration. In the present case, records shows that the children were good in studies and studying in a reasonably good school. Naturally, their future prospect would be presumed to be good and bright. Since they were children, there is no yardstick to measure the loss of future prospects of these children. But as already noted, they were performing well in studies, natural consequence supposed to be a bright future. In the case of Lata Wadhwa (supra) and M. S. Grewal (supra), the Supreme Court recognised such future prospect as basis and factor to be considered. Therefore, denying compensation towards future prospects seems to be unjustified. Keeping this in background, facts and circumstances of the present case, and following the decision in Lata Wadhwa (supra) and M. S. Grewal (supra), we deem it appropriate to grant compensation of Rs. 75,000/- (which is roughly half of the amount given on account of pecuniary damages) as compensation for the future prospects of the children, to be paid to each claimant within one month of the date of this decision. We would like to clarify that this amount i.e. Rs. 75,000/- is over and above what has been awarded by the High Court. Death of house wife In India the Courts have recognised that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is employed and is required to attend the employer's work for particular hours. She takes care of all the requirements of husband and children including cooking of food, washing of clothes, etc. She teaches her small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children. 25 In Rakesh Kumar vs. Prem Lal 26 the High Court discussed how the income of the house wife has to be assessed as under: 16. We are in full agreement with the preposition that the children and husband of the deceased are entitled to compensation on the ground of the loss of the services of the deceased which were no doubt gratuitous, for the reason that the members of the 25 Arun Kumar Agarwal vs. National Insurance Company, AIR 2010 SC (1) Sim. L.C. 448 (DB). Page 10 of 36

11 family can replace such gratuitous services only by incurring expenditure and that while estimating the services of the deceased housewife, a narrow meaning should not be given to the meaning of the word services but should be construed broadly. In Sher Singh vs. Raghubir Singh, 27 the ld. Tribunal had assessed the dependency of the family on the house-wife at Rs. 600/- per month. The High Court held as under:- 4. I am unable to agree with the reasoning given by the Ld. Tribunal. The Tribunal has assessed the work being rendered by the house wife at Rs. 600/- per month. The Tribunal has done this by coming to the conclusion that the services rendered by the deceased to her family can be replaced by hiring a servant at the salary of Rs. 600/- per month. This reasoning is totally fallacious. The work being done by a wife and mother cannot be done by a made-servant. No servant can work for 24 hours at a salary of Rs. 600/- per month. Further more such servant would have to be provided food, clothing and other facilities. In any event, in my opinion, the role of a mother or house wife should not even be compared to that of a servant Accordingly, the High Court estimated the dependency on the house wife at the rate of Rs.1500/- per month i.e. Rs. 18,000/- per year in that case. In Arun Kumar Agarwal vs. National Insurance Company 28, the Supreme Court has also elaborately dealt with the subject as under: 27. It is not possible to quantify any amount in lieu of the services rendered by the wife/mother to the family i.e. husband and children. However, for the purpose of award of compensation to the dependents, some pecuniary estimate has to be made of the services of housewife/mother. In that context, the term `services' is required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependants cannot be diminished on the ground that some close relation like a grandmother may volunteer to render some of the services to the family which the deceased was giving earlier. 35. In our view, it is highly unfair, unjust and inappropriate to compute the compensation payable to the dependents of a deceased wife/mother, who does not have regular income, by comparing her services with that of a housekeeper or a servant or an employee, who works for a fixed period. The gratuitous services rendered by wife/mother to the husband and children cannot be equated with the services of an employee and no evidence or data can possibly be produced for estimating the value of such services. It is virtually impossible to measure in terms of money the loss of personal care and attention suffered by the husband and children on the demise of the housewife. In its wisdom, the legislature had, as early as in 1994, fixed the notional income of a non-earning person at Rs.15,000/- per annum and in case of a spouse, 1/3rd income of the earning/surviving spouse for the purpose of computing the compensation (1) Cur, L.J. (HP) AIR 2010 SC Page 11 of 36

12 36. Though, Section 163A does not, in terms apply to the cases in which claim for compensation is filed under Section 166 of the Act, in the absence of any other definite criteria for determination of compensation payable to the dependents of a non-earning housewife/mother, it would be reasonable to rely upon the criteria specified in clause (6) of the Second Schedule and then apply appropriate multiplier keeping in view the judgments of this Court in General Manager Kerala State Road Transport Corporation v. Susamma Thomas (Mrs.) and others (supra), U.P. S.R.T.C. v. Trilok Chandra (supra), Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another (supra) and also take guidance from the judgment in Lata Wadhwa's case. The approach adopted by different Benches of Delhi High Court to compute the compensation by relying upon the minimum wages payable to a skilled worker does not commend our approval because it is most unrealistic to compare the gratuitous services of the housewife/mother with work of a skilled worker. Injury Cases Injuries cause deprivation to the body which results in losses, entitling the claimant to claim damages. The damages may vary according to the gravity of the injuries. The damages can be pecuniary as well as non-pecuniary. But all this has to be converted into rupees and paisa. The Court has to make a judicious attempt to award the damages, so as to compensate the claimant for the loss suffered by him. The compensation should not be assessed conservatively. On the other hand, compensation should also not be assessed in so liberal fashion as to make it a bounty for the claimant. There must be an endeavour to secure some uniformity and consistency. It is desirable that so far as possible comparable injuries should be compensated by comparable awards. Uniformity is very important. To compensate in money for pain and for physical consequences is invariably difficult, but no other method can be devised than that of making a monetary assessment. Assessibility : In cases of grave injury, where the body is wrecked or brain destroyed, it is very difficult to assess a fair compensation in money, so difficult that the award must basically be a conventional figure, derived from experience or from awards in comparable cases. Predictability: Parties should be able to predict with some measure of accuracy the sum which is likely to be awarded in particular case, for this means cases can be settled peaceably and not brought to Court, a thing very much for the public good. How To Assess Damages Damages have to be assessed under two heads, viz; Pecuniary Damages and Special or General Damages. Pecuniary Damages may include expenses incurred by the claimant on : 1. Medical treatment, attendance, transportation, special diet, etc; 2. Actual loss of earning of profit up to the date of trial; Page 12 of 36

13 3. Future loss of earning Non- pecuniary Damages include: 1. Damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in the future; 2. Damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit. It has been held in Raj Kumar vs. Ajay Kumar 29 as under: 6. The heads under which compensation is awarded in personal injury cases are the following : Pecuniary damages (Special Damages) (i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising : (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General Damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. 7. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) -- involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary... In Raj Kumar Vs. Ajay Kumar, 30 in a case relating to personal injuries the Supreme Court held as under: 29 (2011) 1 SCC 343. See also: Kavita vs. Deepak, (2012) 8 SCC 604 and Subulaxmi vs. TN State Transport Corporation, (2012) 10 SCC (2011) 1 SCC 343. Page 13 of 36

14 14.. In fact, there may not be any need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. While determining pecuniary and non pecuniary heads some guesswork is permissible. In this regard reference may be made to Laxman aliass Laxman Mourya vs. Divisional Manager, Oriental Insurance Company Limited. 31 Damages for loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened, can be awarded. In case of Loss of marital prospects etc., compensation can be awarded. 32 Assessing Disability The Apex Court has dealt with this subject at length in Raj Kumar vs. Ajay Kumar. 33 The relevant discussion reads thus: 9. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%. 11. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is 31 (2011) 10 SCC See: Govind Yadav vs. New India Insurance Company Limited, (2011) 10 SCC 683 and Ibrahim vs. Raju, (2011) 10 SCC (2011) 1 SCC 343. Page 14 of 36

15 approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (see for example, the decisions of this court in Arvind Kumar Mishra v. New India Assurance Co.Ltd (10) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co. Ltd (8) SCALE 567). 13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. 15. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Compensation for future treatment It has been held by the Supreme Court in Sapna Devi vs. United Insurance company 34 that under the Motor Vehicles Act claim cases cannot be reopened in future if in case the petitioner requires further amount for treatment and fresh award cannot be passed. Because, the Award qua the Tribunal is final, while passing the award, some provision should also be made for future treatment of the claimant. deductionforliablenot advantagepecuniary Any cash, bank balance, shares, fixed deposits, etc. are all pecuniary advantage receivable by the heirs on account of one's death. But all these have no co-relation with the amount receivable under a statute occasioned only on account of accidental death. This amount is receivable by the claimant not on account of any accidental death but otherwise on insured's death. In Helen C. Rebello vs. Maharashtra State Road Transport Corpn. 35 it has been held by the Supreme Court that the deduction is not permissible out of the aforesaid amount at the time of awarding compensation by the Tribunal, when it was specifically held as under: 34 (2008) 7 SCC 613. See also Nagappa v. Gurudayal Singh, (2003) 2 SCC (1999) 1 SCC 90. Page 15 of 36

16 Section 163-A Broadly, we may examine the receipt of the provident fund which is a deferred payment out of the contribution made by an employee during the tenure of his service. Such employee or his heirs are entitled to receive this amount irrespective of the accidental death. This amount is secured, is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable only on the happening of the event, viz., accident, which may not take place at all. Similarly, family pension is also earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. No co-relation between the two. Similarly, life insurance policy is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which insured contributes in the form of premium. It is receivable even by the insured, if he lives till maturity after paying all the premiums, in the case of death insurer indemnifies to pay the sum to the heirs, again in terms of the contracts for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on insured's death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, bank balance, shares, fixed deposits, etc. though are all a pecuniary advantage receivable by the heirs on account of one's death but all these have no co-relation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as 'pecuniary advantage' liable for deduction. When we seek the principle of loss and gain, it has to be on similar and same plane having nexus inter se between them and not to which, there is no semblance of any co-relation. The insured (deceased) contributes his own money for which he receives the amount has no co-relation to the compensation computed as against tortfeasor for his negligence on account of accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act, he receives without any contribution. As we have said the compensation payable under the Motor Vehicles Act is statutory while the amount receivable under the life insurance policy is contractual. Compensation under this section is payable on the basis of no fault liability. This section makes special provisions as to payment of compensation on structured formula basis. In case of death claimants must prove that they are legal heirs, the income and the age of deceased. In injury cases, claimant must prove disability, if any, expenses of treatment etc. Compensation under this section is only payable in case of those victims whose income is less than Rs. 40,000/- per annum. 36 A claim with regard to the death of the person who is himself a co-owner and 36 Deepal Girishbhai Soni vs. United India Insurance Co. Ltd, Baroda, (2004) 5 SCC 385. Page 16 of 36

17 one of insured person is not maintainable under Section 163-A. Reference in this regard can be made to Dhanraj vs. New India Assurance Co. Ltd. 37. For the vicarious liability of the owner for the act of others such as driver etc., the reference can be made to New India Assurance Co Ltd. vs. Lachhmi Devi 38 ; Pritam Chand vs H.R.T.C. 39 ; Union of India vs. Smt. Raj Rani 40 and Jawahar Singh vs Bala Jain. 41 Recently the Supreme Court in National Insurance Company Ltd. Vs. Sinitha 42 has however interpreted the provisions of section 163-A to be based on fault liability, when it was held as under: 31. At the instant juncture, it is also necessary to reiterate a conclusion already drawn above, namely, that Section 163A of the Act has an overriding effect on all other provisions of the Motor Vehicles Act, Stated in other words, none of the provisions of the Motor Vehicles Act which is in conflict with Section 163A of the Act will negate the mandate contained therein (in Section 163A of the Act). Therefore, no matter what, Section 163A of the Act shall stand on its own, without being diluted by any provision. Furthermore, in the course of our determination including the inferences and conclusions drawn by us from the judgment of this Court in Oriental Insurance Company Limited vs. Hansrajbhai V. Kodala (supra), as also, the statutory provisions dealt with by this Court in its aforesaid determination, we are of the view, that there is no basis for inferring that Section 163A of the Act is founded under the "no-fault" liability principle. In view of the above authoritative pronouncement of the Apex Court, it will be open to the owner or insurance company, as the case may be, to defeat a claim under Section 163-A of the Act by pleading and establishing through cogent evidence a fault ground i.e. accident being result of wrongful act or neglect or default. In claims falling under Section 163-A, the Tribunal can only grant compensation in terms of the Second Schedule of the Act. No amount not provided for in the Schedule can be awarded. Composite and Contributory Negligence Contributory negligence is when the claimant himself has been negligent and has contributed to the occurrence of the accident. Contributory negligence is normally not attributed to young children. In contributory negligence the victim himself has contributed and therefore, his compensation gets reduced in proportion to his fault. Thus, if the victim is equally negligent and has contributed to the accident in equal measures, he would get only half the compensation. On the other hand, composite negligence means where the accident occurs due to negligence of 37 (2004) 8 SCC ACJ (1) Sim LC Latest HLJ 2006 (1) (HP) (2011) 6 SCC (2012) 2 SCC 356. Page 17 of 36

18 two or more persons but not the victim. In Andhra Pradesh Road Transport Corporation vs. K. Hemlatha 43, the Apex Court has held as under:- 13. In an accident involving two or more vehicles, where a third party (other than the drivers and/or owners of the vehicles involved) claims damages for loss or injuries, it is said that compensation is payable in respect of the composite negligence of the drivers of those vehicles. In such a case, each wrongdoer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. But in respect of such an accident, if the claim is by one of the drivers himself for personal injuries, or by the legal heirs of one of the drivers for loss on account of his death, or by the owner of one of the vehicles in respect of damages to his vehicle, then the issue that arises is not about the composite negligence of all the drivers, but about the contributory negligence of the driver concerned. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence. In composite negligence though the Tribunal may ascertain the percentage of contribution of negligence between the two or more negligent parties but all the tortfeasers have to be held jointly and severally liable. The claimant can claim the entire compensation from all or any one of them. In this regard reference may be made to judgments of the High Court of H.P. in H.R.T.C vs. Smt. Breekan Devi 44 ; H.R.T.C vs. Smt. Meena 45 and that of the Apex Court in New India Assurance Company Limited vs. Yadu Sambhaji More. 46 Recently, it has been held in National Insurance Company Ltd. Vs. Sinitha 47 that it is open to the owner or insurance company, as the case may be, to defeat a claim u/s 163A of the MV Act by pleading and establishing through cogent evidence a 'fault' ground (wrongful act or neglect or default) as Section 163A of the Act was held to be founded under 'fault' liability principle. In such circumstances, the compensation can be reduced on proof of contributory negligence. Statutory Defenses Available To Insurance Company Statutory defense must be available under the Act and must also be reserved in the policy; such defense should be reserved impliedly or explicitly. Defense must be pleaded and proved by Insurance company. Issues with regard to such defenses must be framed. Defenses are available under Sections 147 and 149 of Motor Vehicle Act. 43 AIR 2008 SC FAO No. 221 of 1996, decided on 2/08/ FAO No. 7 of 1999, decided on 02/08/ (2011) 2 SCC (2012) 2 SCC 356 Page 18 of 36

19 Defenses Under Section 147 Section 147 prescribe requirement of policies and limits of liability. After 1994 no passenger in a goods carriage is covered other than owner of goods or his authorized representative or labourer cleaner, extra driver. Owner of goods means the person who travels in the cabin of vehicle. 48 In tractor, the sitting capacity is only one. No passenger can be carried either on the tractor or in the trolley and as such Insurance Company cannot be held liable. 49 Defenses Under Section 149 i). Condition excluding use of vehicle for hire or reward where the vehicle has no permit to carry passengers. 50 ii). Violation of terms and permit in case of transport vehicle; iii). Validity of Driving License. 51 Validity of Driving License License to drive heavy goods vehicle include license to drive heavy passengers vehicle. 52 License to drive LMV does not entitle driver to drive two wheeler scooter or motor cycle. 53 License to Drive LMV includes both transport and non- transport vehicles. However, for the license to be effective it should be expressly stated that license is valid to drive a transport or non transport vehicle. The specific Endorsed to drive transport vehicle is required only after 28/3/ However mere renewal of fake license does not clothe it with validity. 55 Burden of proving fake license is on Insurance company. 56 License is deemed valid after its expiry, only for 30 days See also: New India Assurance Co. vs Asha Rani, AIR 2003 SC 607; National Insurance Company vs. Chinamma, (2004) 8 SCC 697; FAO 143 of 2000, decided on 28/07/2005, titled as National Insurance Company vs. Smt. Savitri Devi and Prakash Chand vs. New India Insurance Company Ltd, 2011 (suppl) Him. L.R FAO No., 485 of 2003, Decided on 3/04/2007, Surjit Singh Vs. Jagraj Singh. 50 FAO no. 421 of 2003, decided on 2/04/2006, Rajender Singh vs. Smt. Kalasho. 51 Swaran Singh s case 2004 ACJ FAO No. 373 of 2001, Decided on 27/09/2005, Barmu Ram Sharma & another vs. United India Insurance Co. Ltd. 53 FAO No. 165 of 2010, Decided on 9/10/11, New India Assurance Company Ltd. Vs Ghanshyam. 54 National Insurance Company Ltd. Vs. Annapia Irappa Nesria, (2008) 3 SCC 464 and FAO No. 272 of 2005, Decided on 20/07/2011, titled as New India Assurance Co. Ltd. Vs. Mandip Kaur. 55 FAO No. 442 of 2008, decided on 1/11/11, titled as National Insurance Co. Ltd vs. Hem Raj. 56 FAO No. 218 of 2003, decided on 6/01/06, titled as New India Insurance Company vs. Sushila Bragta and Kamala Mangalal Vayani vs. United India Insurance Co., Ltd., (2010) 12 SCC FAO No. 284 of 2005, decided on 23/12/2008, titled as National Insurance Company vs. Smt. Situ Devi. See: section 14 MV Act. Page 19 of 36

20 License to drive a tractor permits the driver to drive the same, even when a trailer is attached to the tractor. 58 "Goods carriage" has been defined in Section 2(14) to mean any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods. "Transport vehicle" has been defined in section 2(47) to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. The effect of the different licences granted in terms of the provisions of Section 2(14) and 2(47) has also been noticed by Supreme Court in New India Assurance Co. Ltd. vs. Prabhu Lal 59, as under : 37. The argument of the Insurance Company is that at the time of accident, Ram Narain had no valid and effective licence to drive Tata 709. Indisputably, Ram Narain was having a licence to drive light motor vehicle. The learned counsel for the Insurance Company, referring to various provisions of the Act submitted that if a person is having licence to drive light motor vehicle, he cannot drive a transport vehicle unless his driving licence specifically entitles him so to do (Section 3). Clauses (14), (21), (28) and (47) of Section 2 make it clear that if a vehicle is "light motor vehicle", but falls under the category of transport vehicle, the driving licence has to be duly endorsed under Section 3 of the Act. If it is not done, a person holding driving licence to ply light motor vehicle cannot ply transport vehicle. It is not in dispute that in the instant case, Ram Narain was having licence to drive light motor vehicle. The licence was not endorsed as required and hence, he could not have driven Tata 709 in absence of requisite endorsement and the Insurance Company could not be held liable. Further, in Oriental Insurance Co. Ltd. vs. Angad Kol, 60 it has been held by the Supreme Court as under: 10. The distinction between a `light motor vehicle' and a `transport vehicle' is, therefore, evident. A transport vehicle may be a light motor vehicle but for the purpose of driving the same, a distinct licence is required to be obtained. The distinction between a `transport vehicle' and a `passenger vehicle' can also be noticed from Section 14 of the Act. Sub- section (2) of Section 14 provides for duration of a period of three years in case of an effective licence to drive a `transport vehicle' whereas in case of any other licence, it may remain effective for a period of 20 years. Minor as Driver In United India Insurance Co.Ltd. vs. Rakesh Kumar Arora 61 the driver was found to be minor and was not holding valid and effective driving licence. Therefore, it was held by the 58 Nagashitty vs. United Insurance Co. Ltd. & others, (2001) 8 SCC 56 and United India Insurance Co. Ltd v. Krishan Chand & Others, Latest HLJ 2005 (2) (2008) 1 SCC (2009) 11 SCC IV (2008) ACC 709 (SC). Page 20 of 36

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